In re V.R.

Supreme Court of West Virginia

March 12, 2018

In re V.R. and A.V.

Wetzel
County 16-JA-2 and 3

MEMORANDUM DECISION

Petitioner
Mother E.R., by counsel John M. Jurco, appeals the Circuit
Court of Wetzel County's July 11, 2017, order terminating
her parental rights to V.R. and A.V.[1] The West Virginia Department
of Health and Human Resources ("DHHR"), by counsel
Lee Niezgoda, filed a response in support of the circuit
court's order. The guardian ad litem
("guardian"), Elmer Earl Bowser, Jr., filed a
response on behalf of the children in support of the circuit
court's order. Petitioner submitted a supplemental
appendix and a reply. On appeal, petitioner argues that the
circuit court erred in proceeding to disposition without
properly adjudicating her as an abusing parent, proceeding to
disposition when the DHHR did not file a timely case plan,
and terminating her parental rights.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

On
January 6, 2016, the DHHR filed a petition alleging that
petitioner abused and neglected her three children.
Specifically, the petition alleged that petitioner physically
abused J.R., resulting in multiple contusions and a
concussion, as documented by medical records.[2] The petition
further alleged that all three children resided in the home
with petitioner and that the children were in imminent
danger. According to the DHHR, petitioner's children were
also removed from her custody in 2013 upon the filing of an
abuse and neglect petition alleging non-accidental injuries
to J.R. by petitioner's boyfriend at that time.
Petitioner was adjudicated as an abusing parent and completed
an improvement period with extensive services in the prior
proceeding before the petition against her was dismissed. In
the instant case, petitioner waived her preliminary hearing
in March of 2016.

On May
9, 2016, petitioner executed a voluntary relinquishment of
her parental rights to J.R. That same day, the circuit court
held an adjudicatory hearing wherein petitioner stipulated to
the allegations of the abuse to J.R. The circuit court
adjudicated petitioner as an abusing parent in regard to all
three children and accepted her relinquishment. Petitioner
moved for a post-adjudicatory improvement period with regard
to V.R. and A.V., which the circuit court did not rule on at
that time.

On June
9, 2016, the circuit court granted petitioner's motion
for a post-adjudicatory improvement period following a
hearing on the motion. As part of her improvement period,
petitioner submitted to a psychological and parental fitness
evaluation. The psychologist found that petitioner had
"concerning personality traits" and "an
extensive history of engaging in poor decision making with
regard to her children and romantic partners." The
psychologist also reported that petitioner had a poor
prognosis for parental improvement. Additionally the
psychiatrist found that petitioner failed to accept
responsibility for the abuse to her son, J.R., and lacked a
bond with her daughters, V.R. and A.V. In conclusion, the
psychiatrist reported that the children would be at risk of
abuse if returned to petitioner's care. In December of
2016, the DHHR moved to terminate petitioner's
improvement period and to proceed to disposition. In February
of 2017, the circuit court granted petitioner's motion
for a second psychological and parental fitness evaluation by
a psychologist of petitioner's choosing. The results of
the second psychological evaluation were substantially the
same as the results of the first, except that the second
evaluation specifically diagnosed petitioner with a
"personality disorder."

Prior
to the dispositional hearing, petitioner executed a voluntary
relinquishment of her parental rights to her daughters, V.R.
and A.V. However, the circuit court refused the voluntarily
relinquishment of her parental rights and held the
dispositional hearing on March 17, 2017. The psychologist
testified that the evaluations showed that petitioner had a
personality disorder and a poor to non-existent prognosis for
parental improvement. Petitioner presented the testimony of
J.V., the father of A.V., as well as his two sisters and
cousin, who supervised visits throughout the proceedings. All
four witnesses testified that they observed petitioner
showing affection toward her daughters and never saw her harm
them. Petitioner denied allegations of abuse and neglect and
testified that she "wasn't as attached to
[J.R.]" as she should have been. Petitioner requested a
disposition pursuant to West Virginia Code
49-4-604(b)(5).[3] The circuit court noted at the
dispositional hearing that it had not received a case plan
from the DHHR and ordered that it be submitted by March 24,
2017. The DHHR submitted the case plan and the circuit court
took the matter under advisement. The circuit court found
that it was unlikely that petitioner's ability to parent
would improve, that it was unlikely that she would benefit
from services, and that the children continued to be at risk.
The circuit court also found that there was no reasonable
likelihood that the conditions of abuse and neglect could be
substantially corrected in the near future and that
termination of petitioner's parental rights was in the
children's best interests. Ultimately, the circuit court
terminated petitioner's parental rights.[4] It is from the
dispositional order that petitioner appeals.

The
Court has previously established the following standard of
review:

"Although conclusions of law reached by a circuit court
are subject to de novo review, when an action, such
as an abuse and neglect case, is tried upon the facts without
a jury, the circuit court shall make a determination based
upon the evidence and shall make findings of fact and
conclusions of law as to whether such child is abused or
neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is
clearly erroneous when, although there is evidence to support
the finding, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a
finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit
court's account of the evidence is plausible in light of
the record viewed in its entirety." Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
177 (1996).

First,
petitioner argues that the circuit court erred in proceeding
to disposition when she was not properly adjudicated as an
abusing parent as to V.R. and A.V. She further argues that
the petition failed to make any allegations of abuse and
neglect to V.R. and A.V. We disagree. West Virginia Code
§ 49-4-601(b) provides, in part, that "[t]he
petition shall allege specific conduct including time and
place, how the conduct comes within the statutory definition
of neglect or abuse with references thereto, any supportive
services provided by the department to remedy the alleged
circumstances and the relief sought." West Virginia Code
§ 49-1-201(A) provides that an abused child is
"(1)[a] child whose health or welfare is being harmed or
threatened by: (A)[a] parent, guardian or custodian who
knowingly or intentionally inflicts, attempts to inflict or
knowingly allows another person to inflict, physical injury
or mental or emotional injury, upon the child or another
child in the home[.]" (emphasis added). We have
held that

[w]here there is clear and convincing evidence that a child
has suffered physical and/or sexual abuse while in the
custody of his or her parents(s), guardian, or custodian,
another child residing in the home when the abuse took place
who is not a direct victim of the physical and/or sexual
abuse but is at risk of being abused is an abused child under
W.Va. Code [§] 49-1-3(a) (1994) [now West Virginia Code
§ 49-1-201].

Here,
petitioner argues that the petition was insufficient, as it
did not allege any specific abuse of V.R. or A.V.; however,
the petition clearly set forth that V.R. and A.V. resided in
petitioner's home at the time she physically abused J.R.
and, therefore, were also at risk of abuse. Despite a lack of
admission by petitioner that she physically abused V.R. or
A.V., petitioner stipulated to the abuse of their sibling,
J.R., and petitioner did not contest that all three children
lived with her at the time the petition was filed. The
circuit court found, and specifically indicated in its
adjudication order, that V.R. and A.V. were abused and
neglected children under West Virginia Code §§
...

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